Who owns the building blocks of music?

[Dr. Nelson Harrison]

Who owns the building blocks of music?

Doctor RJ for Daily Kos

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Saturday August 10, 2019 · 10:00 PM EDT

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A decision by a federal jury has alarmed some in the music industry as a copyright on the basic building blocks of music.

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At the end of July, a federal jury found Katy Perry and her collaborators Juicy J, Dr. Luke, Max Martin, Cirkut, Sarah Hudson, and Capitol Records were liable for $2.8 million in damages for plagiarizing Christian rapper Flame, aka Marcus Gray. At issue was Perry’s 2013 song “Dark Horse,” which Blaze, along with co-writers Emanuel Lambert and Chike Ojukwu, asserted was a copy of their 2008 track “Joyful Noise.” Both songs share a descending synth ostinato with evenly spaced B and C notes, but the two songs are in different keys and tempos. The songs also have different melodies, chord progressions, bass lines and drum grooves. So the jury’s decision to find liability over a common minor key progression has created concern among musicologists, intellectual property experts, and music producers, who claim it sets a dangerous precedent where the “core building blocks of music” could be walled away behind a copyright.

There are 12 different notes/roots in the chromatic tonal system, and four basic triads for each root—minor, major, diminished, and augmented. So, just starting with basic math, there are thousands of possible chords depending on the instrument and the number of notes within the chord. If one plays any of those chords in succession, this expands even further the number of possible chord progressions. However, even though a taste in music is subjective, most of those chord progressions are probably going to sound like shit. Just like there are all sorts of ingredients which are palatable and can be eaten, they have to be thrown together in the right sequence and amount to have the most pleasurable taste. This is why only a certain number of chord progressions are ubiquitous across pop music, with many of the biggest hit singles sharing the same ones. And it’s for this reason usually only a song’s lyrics and melody are protected by copyright.

However, in 2015 the lawsuit over the song “Blurred Lines” shifted things a bit. Marvin Gaye’s estate charged that T.I., Pharrell Williams, and Robin Thicke had copied the feel and style of “Got to Give It Up.” A jury ordered Gaye’s heirs be paid $5.3 million in compensation, even though no specific rhythm, melody, harmony, or lyrics were copied, just a prior admission by Thicke in an interview that he wanted to copy the “feel” of Gaye’s song. The decision led to the same consternation among musicians, academics, and critics who claimed it would have a “chilling effect” on music.

So I thought it would be interesting to debate where the line is between creativity and theft, as well as look at some of the historical examples of musical plagiarism, along with the ones which never ended up in court but have been the stuff of fan arguments.

From Nastia Voynovskaya at KQED:

By their definition, popular musical genres are derivative, with composers building on their predecessors' legacies as well as current trends. In recording sessions, it's commonplace for major label artists to play other songs as references with the goal of recreating a certain feel, tone or frequency.

"When people ask me for a certain vibe, I try to create my version of that," says Pinole producer P-Lo, who has made beats for chart-topping rappers Yo Gotti and Wiz Khalifa. "There are only so many notes or chord progressions or bass lines that can be played."

"As a creative, you’re always straddling that line between the familiar and the unknown, and that’s where you find new dots to connect and new frontiers of creativity," says Wax Roof. "If we’re not allowed to access the known, and we’re only allowed to blindly explore the unknown, there’s going to be a huge consequence on quality as a result of that."

Among some of the more famous cases of music plagiarism, shared sounds, borrowed influences, and artistic homages: 

• Led Zeppelin has been accused of multiple musical burglaries over the years, and they are still in court arguing over one of their signature works, “Stairway to Heaven,” from their untitled 1970 album (aka Led Zeppelin IV). The heirs of songwriter Randy Craig Wolfe, a founding member of the band Spirit, filed suit against Jimmy Page, Robert Plant, and others of the Zeppelin sphere in 2014 claiming “Stairway to Heaven” infringes on a 1968 instrumental Spirit piece called “Taurus.” The case hinged on whether the opening guitar riff of “Stairway” was taken from a section of “Taurus,” compounded by the fact Zeppelin had been on tour as the opening act for Spirit during the year when “Taurus” was released, presumably with Page and Plant hearing Spirit play “Taurus” night after night. In 2016, a jury found that while they believe members of Led Zeppelin had heard “Taurus” befor.... However, all of this got thrown back up in the air when the 9th Circuit Court of Appeals vacated the decision after they found the trial judge had erred in instructions about “unprotectable music elements and originality.” The matter is still being fought in federal court at present, after the 9th Circuit voted to rehear the case en banc in June.

• “Whole Lotta Love” is considered one of Led Zeppelin’s best tracks, the opener to Led Zeppelin II, and one of the greatest songs of all time. But the song also takes lyrics from Willie Dixon's "You Need Love," which was recorded by Muddy Waters in 1962. Dixon eventually sued Zeppelin in 1985. The matter was settled out of court for an undisclosed sum, and Dixon’s name being added to the writing credits for “Whole Lotta Love.”

Robert Plant: Page's riff was Page's riff. It was there before anything else. I just thought, 'well, what am I going to sing?' That was it, a nick. Now happily paid for. At the time, there was a lot of conversation about what to do. It was decided that it was so far away in time and influence that ... well, you only get caught when you're successful. That's the game. 

• 1970s singer/songwriter Yusuf Islam (a.k.a. Cat Stevens) sued the Flaming Lips, claiming “Fight Test,” the Lips' opening track from 2002's Yoshimi Battles the Pink Robots, was too similar to his 1970 song “Father and Son.” Lips frontman Wayne Coyne basically admitted to it in interviews, and apologized to Stevens while telling the Guardian: "There was a time during the recording when we said, this has a similarity to 'Father and Son.' Then we purposefully changed those bits. But I do regret not contacting his record company and asking their opinion ... I am ashamed. There is obviously a fine line between being inspired and stealing." Stevens now gets 75% of all royalties from the song.
• George Harrison‘s first solo No. 1 on the Billboard Hot 100 occurred in December 1970 with “My Sweet Lord.” However, in 1976 a U.S. District Court found Harrison had "subconsciously" copied The Chiffons’ song “He's So Fine,” with the presiding judge stating it was “perfectly obvious to the listener that in musical terms, the two so...." Appeals and litigation in the case over damages continued for another two decades before coming to an end in 1998.
• “Creep” was a huge hit for Radiohead and considered one of the best songs of 1990s. Rumored to be about a girl that lead singer Thom Yorke had a crush on, Yorke has said the track is about being in love with someone, but not feeling you're good enough. He describes the feeling as, "there's the beautiful people and then there's the rest of us." However, Radiohead has come to hate the song, since given its popularity the band, and particularly Yorke, became identified with it and get asked to perform it over and over again. Yorke dislikes the song so much that he's said in interviews that Radiohead "sucked Satan's cock" when they rode it to stardom. In some interviews, Yorke has offered an alternate interpretation of the song. Instead of being a sympathetic perspective, the song is everything that's wrong about the loaner, slacker sad sack that obsesses over a girl. The song is also a famous case of plagiarism. “Creep” uses the chord progression from The Hollies' “The Air That I Breathe” in its verse and the melody from the song in the bridge following the second chorus of “Creep.” The writers of “The Air That I Breathe,” Albert Hammond and Mike Hazlewood, noticed and sued Radiohead. Both Hammond and Hazlewood are now credited as co-writers of “Creep” in the liner notes of Pablo Honey. But the situation was brought back to the forefront last year when Lana Del Rey released “Get Free,” with Del Rey posting a tweet claiming Radiohead was suing her over the similarities to “Creep” and demanding 100% of the publishing royalties for “Get Free.” Del Rey denied “Get Free” was inspired by “Creep,” and Radiohead denied Del Rey’s allegations that they were demanding 100% of the royalties. But the two groups did have discussions and apparently reached a settlement over the issue.

• Coldplay had their first No. 1 on the Billboard Hot 100 in 2008 with “Viva la Vida,” attracting the attention of guitarist Joe Satriani, who claimed it was similar to his 2004 instrumental track “If I Could Fly.” The band settled out of court with Satriani in 2009, calling the similarities between the tracks an unfortunate coincidence.
• Johnny Cash has one of the most memorable and disturbing lines in all of music: “I shot a man in Reno, just to watch him die.” However, Cash was forced to pay composer Gordon Jenkins $75,000 for using lyrics and melody from Jenkins' 1953 track “Crescent City Blues” as the basis for 1955’s “Folsom Prison Blues.” Cash changed significant parts of the song, going from a track about a lonely woman looking to escape the particulars of her life to a prison tale of murder and regret. But the lyrics, including the opening lines, "I hear the train a-comin, it's rollin' 'round the bend" were similar enough to Jenkins’s track to cause a lawsuit.
• One of the biggest issues surrounding hip-hop and rap in the 1980s and 1990s was the legality of sampling. If a hip-hop artist used a piece of another musician’s work in their own, is that stealing? Or is taking a sample of someone else’s song and creating something new out of it “transformative” into something which is wholly different? De La Soul’s 1989 album 3 Feet High and Rising shows up on a lot of lists for greatest albums. But 3 Feet High and Rising is full of samples from other works. One of those works was The Turtles’ 1969 song "You Showed Me” in De La Soul’s “Transmitting Live from Mars.” This eventually resulted in former Turtles’ members Howard Kaylan and Mark Volman suing De La Soul in 1991 for $2.5 million, claiming "anybody who can honesty say sampling is some sort of creativity has...." Even though neither Kaylan or Volman wrote “You Showed Me”—that would be Roger McGuinn and Gene Clark of The Byrds—they did receive a monetary sum in settlement, and De La Soul has had trouble releasing their music in digital formats since all of the samples they used have to receive clearances now. That’s because the issue of sampling and copyright infringement was effectively settled in Grand Upright Music, Ltd. v. Warner Bros. Records Inc., which concerned Biz Markie ”Alone Again” using a sample of "Alone Again (Naturally)" by Gilbert O’Sullivan. According to O’Sullivan, he was asked to approve the sample, listened to Markie’s song, and declined to give clearance. After Markie and Warner Bros. were told no, they went ahead and did it anyway, releasing Markie’s “Alone Again” with O’Sullivan’s sample. The presiding judge in the case ordered Markie to pay $250,000 in damages, barred Warner Bros. from continuing to sell either a single or album containing the track, and referred the case to criminal court on the grounds Markie and Warne.... The effect of the decision, and the inability to use samples without clearing it with and compensating the original artist, has been called one of the most significant in changing the nature of pop music an....
• Vanilla Ice rode “Ice Ice Baby” to No. 1 on the Hot 100 in 1990, the first hip-hop song ever to top that chart. Unfortunately for him, plenty of listeners pointed out the song's similarity to 1981s “Under Pressure” by David Bowie and Queen. While Vanilla Ice denied the similarity at first in an infamous interview with MTV, he later relented and decided to pay both parties royalties in order to avoid a court battle.

• The Verve’s 1997 hit “Bitter Sweet Symphony” reached No. 12 on the Billboard Hot 100, and is arguably the band’s biggest hit. However, they saw not one dime from it. The song samples The Andrew Oldham Orchestra recording of the Rolling Stones’ “The Last Time.” The Stones’ business manager, Allen Klein, holds the rights to “The Last Time” and all of the Rolling Stones’ pre-1970 material. The Verve secured a license to sample a portion of “The Last Time.” However, Klein went to court and successfully argued The Verve had sampled too much. The rights and royalties to “Bitter Sweet Symphony” were relinquished to Klein, and songwriting credits on all copies since were changed to list Mick Jagger, Keith Richards, and Richard Ashcroft as the writers. Earlier this year, Jagger and Richard signed over their writing credits for “Bitter Sweet Symphony” to As..., The Verve's frontman and co-founder, when he received an Ivor Novello Award, a British prize for songwriting and composition.
• Ray Parker, Jr. was nominated for an Oscar with his theme song to Ghostbusters. However, Huey Lewis sued Parker and Columbia Pictures, claiming the song was basically stolen from Huey Lewis and the News' “I Want a New Drug.” The parties settled out of court, though Lewis' alleged breach of the confidentiality agreement—he discussed the case on VH1's Behind the Music in 2001—led to Parker suing Lewis. Discussing the film in Premiere magazine years later, the film's producers admitted Lewis declined their offer to write the theme song and, upon hiring Parker, they gave him a copy of “I Want a New Drug” and asked for something which sounded similar.
• There was a stretch in the mid 1990s where the music industry touted Oasis as the second coming of The Beatles, with the hype positioning Liam and Noel Gallagher as the Lennon and McCartney for a new generation after the success of their first two albums. And the band actually both accepted and claimed this mantle of being the successors to one of the best pop groups in the history of music. Problems came after Oasis released a dud of a third album, which were compounded by severe interpersonal conflicts within the group and excessive drug use. Popular reassessments of Oasis started coming in fast and furious, and what was originally characterized as inspiration seemed to be more like theft. However, it wasn’t stealing from the Beatles but Coca-Cola which got the group into legal trouble. The second single of Oasis’ Definitely Maybe, “Shakermaker,” takes the melody and even lyrics from The New Seekers’ “I’d Like to Teach the World to Sing,” which was famously used in one of the most memorable Coca-Cola commercials of all-time. Coca-Cola successfully sued Oasis for unlicensed use of the song.
• Brazilian musician Jorge Ben Jor claimed Rod Stewart's 1979 No. 1 hit “Da Ya Think I'm Sexy?” steals from portions of his song “Taj Mahal.” The two settled out of court, and in his 2012 autobiography, Stewart admitted to "unconscious plagiarism."

• The Beach Boys’ “Surfin’ U.S.A.” was a huge hit of 1963 and one of the defining tracks of their early work. However, the song steals its melody from Chuck Berry’s “Sweet Little 16,” with Brian Wilson admitting in 2015 that he “took 'Sweet Little Sixteen' and rewrote it into something of our own," when composing “Surfin’ U.S.A.” In order to avoid a lawsuit, Beach Boys manager—and Brian Wilson's father—Murray Wilson turned over the publishing rights to Berry’s publishing company and Berry’s name was put on the writing credits for “Surfin’ U.S.A.” in 1966. Reportedly, Murray Wilson did not tell the members of the Beach Boys about any of this though, and they didn’t realize royalties for the song had been signed away until ab.... It should also be pointed out Berry himself may have based the melody of “Sweet Little 16” on someone else’s work. “Sweet Little 16” has similarities to Clarence Garlow’s 1953 song “Route 90.” 
• In 1973, Chuck Berry's publishing company sued John Lennon. They claimed some lines and melodies for “Come Together” were taken from Berry's 1956 track “You Can't Catch Me.” As part of a settlement, Lennon agreed to record three songs owned by publisher Morris Levy, including a cover of “You Can't Catch Me” for Lennon's 1975 covers album Rock 'N' Roll. Ultimately, this created even bigger messes and more lawsuits between Levy and Lennon, culminating in the release of the rare Lennon bootleg Roots: John Lennon Sings the Great Rock & Roll Hits.
• After Creedence Clearwater Revival broke up in 1972, frontman John Fogertyowed eight more albums to his label Fantasy Records. Fogerty gave up his Creedence publishing rights to Fantasy head Saul Zaentz in exchange for getting out of his contract, but was later sued by Zaentz, who claimed Fogerty's song “The Old Man Down the Road” plagiarized CCR's “Run Through the Jungle.” So John Fogerty was in essence being sued for plagiarizing John Fogerty. Fogerty ultimately won the lawsuit against Zaentz, but was forced to settle a defamation charge out of court by Zaentz for his track “Zanz Kant Danz,” a thinly veiled attack on the label owner, with the title later changed to “Vanz Kant Danz.”

• Although they have different chord progressions, similarities have led some to claim Nirvana’s “Smells Like Teen Spirit” borrows from Boston’s “More Than a Feeling.” Kurt Cobain acknowledged “Teen Spirit” uses a “cliched riff” which was “close to a Boston riff or ‘Louie, Louie.’”
• Back in 2001, The Strokes released “Last Nite” as the second single for their album Is This It. Written and composed by Strokes’ frontman Julian Casablancas, a lot of people noticed the song seemed to take its guitar riff and basic structure from Tom Petty’s “American Girl.”
• “Dani California” was the lead single for the Red Hot Chili Peppers’ ninth studio album, Stadium Arcadium. Shortly after it was released in 2006, some pointed out similarities to Tom Petty’s “Mary Jane’s Last Dance.” The chord progressions for both tracks sound similar, but are different, but the guitar licks and drum beat also seem to clearly channel “Mary Jane.” This one becomes even more complicated by the fact “Mary Jane’s Last Dance” has similarities to “Waiting for the Sun” by The Jayhawks, with The Jayhawks having been Tom Petty and the Heartbreakers’ opening act for their 1992 tour and both producer Rick Rubin and Heartbreakers’ keyboardist Benmont Trench having worked on both songs. While there were rumors in the press Petty might sue over “Dani California,” in interviews he didn’t seem to be that bothered by any of it.

Tom Petty: The truth is, I seriously doubt that there is any negative intent there. And a lot of rock & roll songs sound alike. Ask Chuck Berry. The Strokes took “American Girl” [for their song “Last Nite”], and I saw an interview with them where they actually admitted it. That made me laugh out loud. I was like, “OK, good for you.” It doesn’t bother me ... If someone took my song note for note and stole it maliciously, then maybe. But I don’t believe in lawsuits much. I think there are enough frivolous lawsuits in this country without people fighting over pop songs.

• However, Tom can’t speak for his publishing company. In October 2014, Tom Petty’s publisher contacted Sam Smith’s publisher about similarities in melody found in the choruses of Petty’s “I Won’t Back Down” and Smith’s “Stay With Me.” Smith and his co-writers claimed they had never heard “I Won’t Back Down”before, but after listening to the two songs, conceded a similarity. In interviews, Smith said: “It was a complete accident. I am 22 years old. I’ve never listened to that song.” In the end, Smith and his co-writers settled the dispute, accepting the similarities and giving Petty and co-writer Jeff Lynne writing credit on “Stay With Me,” along with 12.5% of the royalties from the song, which was one of the biggest singles of 2014.
• The opening guitar riff for Green Day’s “Brain Stew” has a striking resemblance to elements of Chicago’s “25 or 6 to 4.” While Chicago’s riff is slower, Green Day’s intro has a nearly identical three-chord progression. Something similar is also true for The Police’s “Message in a Bottle” and Rihanna’s “Love Without Tragedy,” with the intros to both tracks being almost the same.
• One Direction fans were outraged when it was suggested that the band’s “Best Song Ever” sounds suspiciously similar to The Who’s “Baba O’Riley.” The producer of “Best Song Ever” acknowledged in interviews it took “inspiration” from The Who’s track. And Pete Townshend didn’t seem bothered about it when he was asked.

Pete Townshend: "No! I like the single. I like One Direction … The chords I used and the chords they used are the same three chords we've all been using in basic pop music since Buddy Holly, Eddie Cochran and Chuck Berry made it clear that fancy chords don't mean great music – not always. I'm still writing songs that sound like 'Baba O'Riley' – or I'm trying to!"

• Bruno Mars and Mark Ronson have been at the center of multiple legal actions over the song “Uptown Funk.” Ronson and his co-composers for “Uptown Funk” had already given writing credit to Trinidad James for his 2012 rap hit “All Gold Everything.” But shortly after the song’s release, the pile on began. The Gap Band claimed “Uptown Funk” stole from their 1979 track “Oops Upside Your Head.” The matter was settled out of court in 2015, with the four Gap Band members—Charlie, Robert and Ronnie Wilson and Rudolph Taylor—along with their producer, Lonnie Simmons, receiving writing credit to “Uptown Funk” which gave each of them 3.4% of the track’s royalties. Settlements have also been reached with Minneapolis electro-funk band Collage who claimed Mars and Ronson had borrowed from their track “Young Girls,” and the copyright holders of Zapp & Roger’s 1980 classic “More Bounce to the Ounce” who claimed Ronson had stolen elements from their music. Legal action from The Sequence still remains, since they claim “Uptown Funk” borrows from “Funk You Up.”
• Michael Bolton has described a jury’s decision to award over $5 million to the Isley Brothers for Bolton’s song “Love Is a Wonderful Thing” as an “atrocity” which destroyed his faith in the justice system. The song was a popular track on Bolton's 1991 album Time, Love & Tenderness, which sold 16 million copies worldwide. However, the Isleys felt the song was copied from their 1964 track of the same name, which Bolton has vehemently denied. But in 1994 a jury found there were similarities and ordered Bolton, song co-writer Andrew Goldmark, and Sony Music Publishing to give the Isleys 66% of what they deemed to be past and future royalties from Bolton’s “Love Is a Wonderful Thing” and 28% of Bolton’s album royalties.

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